# Griffin v. State

> Indiana Court of Appeals · September 7, 2000 · 735 N.E.2d 258

URL: https://www.frixlaw.com/law-library/cases/9716033

## Case

- **Full name:** James R. GRIFFIN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
- **Court:** Indiana Court of Appeals
- **Decided:** September 7, 2000
- **Citations:** 735 N.E.2d 258; 2000 Ind. App. LEXIS 1386; 2000 WL 1285405
- **Precedential status:** Published
- **Opinion:** Dissent by Kirsch
- **Judges:** Riley, Baker, Kirsch
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

KIRSCH, Judge,
dissenting.
I respectively dissent.
The dispositive issue in this case is how we characterize the alleged improper participation in jury deliberations by the alternate juror. If such improper participation constitutes ex parte communication, then it falls clearly within the exception of Ind. Evidence Rule 606 which allows juror affidavits where “any outside influence was improperly brought to bear upon any juror.” If the juror affidavits are admissible, they give rise to a presumption of prejudice. If the alleged improper participation does not constitute ex parte communication, then the exception does not apply.
I believe that the alleged improper participation by the alternate juror constitutes an ex parte communication with a deliberating jury, that the exception of Evid. R. 606 does apply, that the juror affidavits were admissible, that a presumption of prejudice was created, and that, here, not only was that presumption not rebutted, it was firmly established.
In Smith v. Convenience Store Distrib. Co., 583 N.E.2d 735, 738 (Ind.1992), our supreme court said,
“Deliberation is the process by which the jury resolves the dispute before it on the basis of the evidence and instructions given in open court. Deliberations are to be free of extraneous influence so this purpose can be fulfilled. When this process is interrupted by an ex parte communication, the presumption is that the jury is influenced.”
This court and our supreme court have repeatedly held that communications by trial judges, bailiffs and other court personnel to deliberating juries constitute ex parte communications giving rise to the presumption of prejudice. Indeed, a panel of this court recently held that a communication to a deliberating jury by one of Indiana’s most learned and respected trial judges in responding to a jury question about whether it could hold a press conference after deliberations were completed constituted such an improper communication giving rise to a presumption of prejudice which was not rebutted. See Rogers v. R.J. Reynolds Tobacco Co., 731 N.E.2d 36, 46 (Ind. Ct.App.2000).
If a communication by a learned trial judge with a deliberating jury is deemed to be ex parte and presumptively prejudicial, how can the improper participation by the alternate juror in deliberations be any less? This is especially true, where, as here, that communication comes at a time when the jury believes itself deadlocked. Record at 165,180.
I would reverse Griffin’s conviction and remand for a new trial.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9716033. Public record. Not legal advice.